Citation NR: 9727739
Decision Date: 08/11/97 Archive Date: 08/19/97
DOCKET NO. 94-20 461 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUE
Whether new and material evidence has been presented to
reopen the veteran's claim for entitlement to service
connection for residuals of a head injury.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
C. Hickey, Associate Counsel
INTRODUCTION
The veteran had active service from August 1954 to July 1957.
This appeal to the Board of Veterans' Appeals (Board) arises
from the May 1995 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) which found that
the veteran had not presented new and material evidence to
reopen a claim for service connection for residuals of a head
injury.
CONTENTIONS OF APPELLANT ON APPEAL
It is contended by and on behalf of the veteran that he is
entitled to service connection for residuals of a head
injury. It is also maintained that prior denials of service
connection were clearly and unmistakably erroneous.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims folder. Based on our review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the veteran has not
presented new and material evidence, and his claim for
entitlement to service connection for residuals of a head
injury has therefore not been reopened.
FINDINGS OF FACT
1. Service connection for residuals of a head injury was
denied by rating decision in January 1958.
2. The veteran was notified of the January 1958 rating
decision by letter in January 1958 and was advised of his
appellate rights.
3. The veteran did not initiate a timely appeal of the
January 1958 rating decision.
4. By decision dated in December 1988, the Board denied
service connection for hearing loss and headaches as
residuals of a head injury.
5. By a rating action in February 1989 the RO denied
entitlement to service connection for tinnitus.
6. The veteran did not initiate an appeal from the February
1989 rating decision which denied entitlement to service
connection for tinnitus.
7. No new and material evidence has been received subsequent
to the January 1958 rating decision pertaining to any
residuals of a head injury other than headaches, hearing loss
or tinnitus.
8. No new and material evidence has been received subsequent
to the December 1988 Board decision, pertaining to headaches
or hearing loss as residuals of a head injury.
9. No new and material evidence has been received subsequent
to the February 1989 rating decision pertaining to tinnitus
as residual of a head injury.
CONCLUSION OF LAW
No new and material evidence having been received, the
veteran’s claim for entitlement to service connection for
residuals of a head injury has not been reopened.
38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
Service medical records reveal that the veteran sustained a
brain concussion and fracture of the left clavicle in an
automobile accident in May 1957. He was in a coma for 48
hours while being treated in a civilian hospital prior to
transfer to a military hospital. On admission to the
military facility he was noted to be generally confused. He
complained of headaches and there was an apparent impairment
of hearing on the left side. X-rays disclosed no evidence of
skull fracture. Clinical records state that after being
provided with glasses the veteran indicated that his
headaches were cured. A hospital discharge summary indicates
that during his 30 day period of hospitalization the
veteran’s mental confusion cleared, and after the removal of
a blood clot from the left external auditory meatus, left ear
hearing problems resolved. The diagnoses on discharge to
duty were simple fracture of the left clavicle and concussion
of the brain. At the time of his July 1957 separation
examination no abnormalities of the head were indicated on
clinical evaluation and no residuals or head injury were
noted by the examiner. Hearing was described as 15/15
bilaterally.
On VA examination conducted in December 1957 the veteran
complained of light headaches and ringing in the left ear.
X-rays revealed no evidence of skull fracture and indicated
that the bones of the skull were normal in texture and
morphology with no evidence of increased intracranial
pressure demonstrable. The examination report reflects an
impression of slight bilateral nerve deafness in high ranges.
The diagnosis on neurological examination was no objective
evidence of any neurological disorder.
Received in June 1987 were private medical records indicating
that when the veteran was seen in May 1987, he complained of
hearing a pulsatile sound in his left ear for some time and
gave a history of severe headaches since his injury in
service. He indicated that following the injury he had no
major problems other than headaches. A computerized
tomography (CT) scan of the brain revealed some low density
areas in the occipital region, considered possibly to be a
small infarct. No sensory or cerebellar deficits were
revealed on examination.
The report of a VA audiological evaluation conducted in May
1987 indicates that the veteran reported infrequent episodes
of left ear tinnitus of short duration since his accident in
service. Audiological data was interpreted to show mild to
moderate sensorineural impairment in the higher frequency
range.
On VA examination conducted in June 1987 the veteran reported
a history of headaches and tinnitus since his accident in
service, and related that he had been aware of a hearing loss
for a number of years. Headaches were reportedly accompanied
by blurred vision in the right eye. The diagnoses included
hearing loss and tinnitus, left ear - status post accident
and coma; rule out seizure versus vascular headaches - status
post head trauma; recent carotid endarterectomy complicated
by brain stem stroke or peripheral nerve damage.
VA outpatient records dated in August 1987 show the veteran
was seen for left temporo-facial pain considered to be
probably of vascular etiology. He also reported bilateral
frontal headaches of 25 years duration.
When the veteran testified at a personal hearing in January
1988 the veteran indicated that he took over the counter
medication for headaches and stated that he had noticed a
hearing loss since service. His representative related that
the veteran also received prescription medication for
headaches. The veteran indicated that he had been laid off
from his job with the Post Office due to the inability to
remember instructions.
Received in November 1993 and March 1995 were duplicate
copies of some service medical records.
Allegations of Clear and Unmistakable Error
At this point, the Board recognizes that the veteran and his
representative have put forth contentions to the effect that
clear and unmistakable error was involved in prior decisions
denying entitlement to service connection for residuals of a
head injury. 38 C.F.R. §§ 3.104(a), 3.105(a) (1996).
Review of the record reveals that by rating action in January
1958, the RO denied service connection for residuals of a
head injury. The veteran received written notification of
that action by letter in January 1958 and, as he failed to
file a timely appeal therefrom, the decision became final.
38 U.S.C.A. § 7105(c) (West 1991).
In December 1988 the Board denied service connection for
hearing loss and headaches as residuals of a head injury.
That determination also is also final and is not subject to
collateral attack by a claim of clear and unmistakable error.
38 U.S.C.A. § 7104 (West 1991); Smith v. Brown, 35 F.3d 1516,
1523 (Fed. Cir. 1994).
Subsequently the RO denied service connection for tinnitus in
February 1989. Received in February 1989 was a “notice of
disagreement” in which the veteran asserted that his service-
connected disabilities were mistakenly identified and his
major complaints were head injury with residuals of hearing
loss and headaches.
With regard to the veteran’s allegation that prior rating
decision which denied his claims for residuals of a head
injury was clearly and unmistakably erroneous, the Board
notes that by a rating action in May 1992 the RO denied the
veteran’s claim of clear and unmistakable error in the
January 1958 rating decision, and the veteran submitted a
timely notice of disagreement with that decision. Received
in February 1993 was a statement from the veteran’s
representative to the effect that a clear and unmistakable
error was made in failing to grant service connection for
tinnitus and head injury. A statement of the case was issued
in November 1993 addressing the issue of clear and
unmistakable error in the denial of service connection for
residuals of head injury and tinnitus. However, the veteran
did not submit a timely appeal of the issues addressed by the
November 1993 statement of the case. Accordingly the Board
finds that the February 1989 rating decision, as well as the
May 1992 decision is final.
The Board emphasizes here that the United States Court of
Veteran’s Appeals (Court) has held that a claim for clear and
unmistakable error (CUE) cannot be endlessly reviewed. “Once
there is a final decision on a particular claim of CUE, that
particular claim of CUE may not be raised again; it is res
judicata." Olson v. Brown, 5 Vet.App. 430, 433 (1993).
Accordingly, the Board is unable to find that there is a
clear and unmistakable error issue before it for appellate
review.
New and Material Evidence to Warrant Reopening the Claim for
Service Connection for Residuals of a Head Injury
In view of the foregoing, the veteran may pursue his claim for
service connection for residuals of a head injury only by
presenting new and material evidence to reopen the claim. 38
U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1996). On
claims to reopen previously and finally disallowed claims, the
Board must conduct a two part analysis. See Manio v.
Derwinski, 1 Vet.App. 140, 145 (1991). First, it must be
determined whether the evidence presented or secured since the
prior final disallowance of the claim is new and material.
See Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). New
evidence is evidence that is not merely cumulative of other
evidence on the record. Ibid. Evidence is material where it
is relevant to and probative of the issue at hand and where it
is of sufficient weight or significance (assuming its
credibility, see generally, Justus v. Principi, 3 Vet.App.
510, 513 (1992)) that there is a reasonable possibility that
the new evidence, when viewed in the context of all the
evidence, both new and old, would change the outcome. Sklar
v. Brown, 5 Vet.App. 140, 145 (1993); Cox v. Brown, 5 Vet.App.
95, 98 (1993); Colvin, 1 Vet.App. at 174. Second, if it is
determined that the evidence is new and material, the Board
must reopen the claim and evaluate the merits of the veteran's
claim in light of all the evidence, both old and new. Masors
v. Derwinski, 2 Vet.App. 181, 185 (1992).
The Court has also held that in order to reopen a claim, there
must be new and material evidence presented or secured since
the time that the claim was finally disallowed on any basis.
Evans v. Brown, 9 Vet.App. 273, 285 (1996). Accordingly,
after reviewing the procedural history of this case, the Board
believes that it must consider whether new and material
evidence has been received since the January 1958 rating
decision denying entitlement to service connection for a hear
injury, the December 1988 Board decision denying entitlement
to service connection for hearing loss and headaches as
residuals of a head injury, and the February 1989 rating
decision denying entitlement to service connection for
tinnitus.
Evidence of private and VA medical treatment and examinations
have been received since the January 1958 rating decision,
but there is nothing in this newly received evidence which
raises a reasonable possibility that a review of the entire
record would result in a different outcome. Likewise,
evidence received since the December 1988 Board decision
which denied entitlement to service connection for headaches
and hearing loss as residuals of a head injury does not raise
a reasonable possibility of a different outcome and is thus
not material. The Board at that time had before it evidence
of headaches and hearing loss in service, but found that
inservice complaints relating to both were acute and
transitory. The Board also had before it evidence of post-
service hearing loss and headaches, but nevertheless found
that they were not related to service. Evidence received
since December 1988 shows hearing loss and headaches, but
does not tend to show any link to service and is therefore
not material. Finally, there has been no evidence received
since the February 1989 rating decision which tends to show
that the veteran’s complaints of tinnitus are related to
service or in anyway raises a reasonable possibility of a
different outcome.
In sum, evidence received since the prior final decisions
denying entitlement to service connection for residuals of a
head injury (based on various claimed symptoms) is not
material. The veteran’s claim has therefore not been
reopened. This finding does not, however, preclude the
veteran from presenting new and material evidence at some
future time.
ORDER
The appeal is denied.
ALAN S. PEEVY
Acting Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1997) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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